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Retrospective revocation – Revisited

The proposed amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill that I discussed yesterday has been causing no end of fuss (understandably) with at least one expert commentator advising against signing a client up to a CFA until the Bill is in its final form.

However, further analysis of the proposed amendment has led most commentators to come round to the view that, if implemented, it will not render success fees irrecoverable if a matter is not settled prior to April 2013 (see this analysis for the current line of thinking). It appears that the amendment is actually intended to catch CCFA claims once the implementation date is reached. In other words, the amendment is necessary to stop success fees in CCFA cases being recovered where work begins after April 2013. It will not be possible, under this amendment, to claim a success fee is recoverable simply because the original CCFA pre-dates April 2013.

It does seem rather bizarre that it has only just been appreciated that CCFA cases might not have been caught by the Bill as originally drafted. (What else is being overlooked?)

As to this amendment, as I mentioned yesterday, “this could have been worded considerably more clearly”. I think we can all agree on that.

This is a question rather than a view. The problem is whether the word “not” was supposed to be deleted. The MoJ are now saying that the intention was always that it should remain. Fair enough.
This means (according to the MoJ) that you get your success fee if you have made a CFA just for the case itself (this being subparagraph (a)) or if you have received legal services under the agreement (this being (b)).
If this was the case, then why was there a need to have (a) and (b)? Why not just (b)? Surely (b) would catch both CCFAs and CFAs.
And what is the function of (a)? If it is going to add anything to (b), then it can only be for cases where no legal services were provided before the commencement date. What’s that all about? Why is the MoJ amending the Act to allow claimants to get success fees in cases where, at the commencement date, their solicitors hadn’t even begun work?
If the MoJ are right about the word “not” remaining, then aren’t we going to have years of disputes about what (a) really means and when it applies?
Simon, we demand answers, and we expect you to provide them! How does all this stack up?